46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO WORKERS' COMPENSATION; AMENDING SECTIONS OF THE NMSA 1978 TO MAKE TECHNICAL REVISIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 52-1-1.1 NMSA 1978 (being Laws 1986, Chapter 22, Section 26, as amended) is amended to read:

"52-1-1.1. DEFINITIONS.--As used in Chapter 52, Articles 1 through 6 NMSA l978:

A. "director" means the director of the workers' compensation administration;

B. "division" means the workers' compensation administration;

C. "workers' compensation judge" means an individual appointed by the director to act as a workers' compensation judge in the administration of the Workers' Compensation Act or the New Mexico Occupational Disease Disablement Law;

D. "workman" or "workmen" means worker or workers;

E. "Workmen's Compensation Act" means the Workers' Compensation Act; and

F. "workmen's compensation administration" or "administration" means the workers' compensation administration [administratively attached to the labor department]."

Section 2. Section 52-1-2 NMSA 1978 (being Laws 1929, Chapter 113, Section 2, as amended) is amended to read:

"52-1-2. EMPLOYERS WHO COME WITHIN ACT.--The state and each county, municipality, school district, drainage, irrigation or conservancy district, public institution and administrative board thereof employing workers, every charitable organization employing workers and every private person, firm or corporation engaged in carrying on for the purpose of business or trade within this state, and which employs [four] three or more workers, except as provided in Section 52-1-6 NMSA 1978, shall become liable to and shall pay to any such worker injured by accident arising out of and in the course of his employment and, in case of his death being occasioned thereby, to such person as may be authorized by the director or appointed by a court to receive the same for the benefit of his dependents, compensation in the manner and amount at the times [herein] required in the Workers' Compensation Act."

Section 3. Section 52-1-7 NMSA 1978 (being Laws 1975, Chapter 284, Section 4, as amended) is amended to read:

"52-1-7. APPLICATION OF PROVISIONS OF ACT TO CERTAIN EXECUTIVE EMPLOYEES OR SOLE PROPRIETORS.--

A. Notwithstanding any provisions to the contrary in the Workers' Compensation Act, an executive employee of a professional or business corporation or limited liability company, employed by the professional or business corporation or limited liability company as a worker as defined in the Workers' Compensation Act, or a sole proprietor may affirmatively elect not to accept the provisions of the Workers' Compensation Act.

B. Each executive employee or sole proprietor desiring to affirmatively elect not to accept the provisions of the Workers' Compensation Act may do so by filing an election in the office of the director.

C. Each executive employee or sole proprietor desiring to revoke his affirmative election not to accept the provisions of the Workers' Compensation Act may do so by filing a revocation of the affirmative election with the workers' compensation insurer and in the office of the director. The revocation shall become effective thirty days after filing. An executive employee shall cause a copy of the revocation to be mailed to the board of directors of the professional or business corporation or limited liability company.

D. The filing of an affirmative election not to accept the provisions of the Workers' Compensation Act shall create a conclusive presumption that an executive employee or sole proprietor is not covered by the Workers' Compensation Act until the effective date of a revocation filed pursuant to this section. The filing of an affirmative election not to accept the provisions of the Workers' Compensation Act shall apply to all corporations or limited liability companies in which the executive employee has a financial interest.

E. In determining the number of workers of an employer to determine who comes within the Workers' Compensation Act, an executive employee who has filed an affirmative election not to be subject to the Workers' Compensation Act shall be counted for determining the number of workers employed by such employer.

F. For purposes of this section:

(1) "executive employee" means the chairman of the board, president, vice president, secretary, treasurer or other executive officer, if he owns ten percent or more of the outstanding stock, of a professional or business corporation or a ten percent ownership interest in a limited liability company; and

(2) "sole proprietor" means a single individual who owns all the assets of a business, is solely liable for its debts and employs in the business no person other than himself."

Section 4. Section 52-1-30 NMSA 1978 (being Laws 1987, Chapter 235, Section 14, as amended) is amended to read:

"52-1-30. PAYMENT OF COMPENSATION BENEFITS--INSTALLMENTS.--Compensation shall be paid by the employer to the worker in installments. The first installment shall be paid not later than fourteen days after [the filing of the report required in Section 52-1-58 NMSA 1978] the worker has missed seven days of lost time from work, whether or not the days are consecutive. Remaining installments shall be paid twice a month at intervals not more than sixteen days apart in sums as nearly equal as possible, except as provided in Section 52-5-12 NMSA 1978."

Section 5. Section 52-1-43 NMSA 1978 (being Laws 1987, Chapter 235, Section 18, as amended) is amended to read:

"52-1-43. COMPENSATION BENEFITS--INJURY TO SPECIFIC BODY MEMBERS.--

A. For disability resulting from an accidental injury to specific body members, including the loss or loss of use thereof, the worker shall receive the weekly maximum and minimum compensation for disability as provided in Section 52-1-41 NMSA 1978, for the following periods:

Injury Compensation Benefits

Number of Weeks

(1) one arm at or near shoulder, dextrous member 200 weeks

(2) one arm at elbow, dextrous member 160 weeks

(3) one arm between wrist at elbow, dextrous member 150 weeks

(4) one arm at or near shoulder, nondextrous member 175 weeks

(5) one arm at elbow, nondextrous member 155 weeks

(6) one arm between wrist and elbow, nondextrous member 140 weeks

(7) one hand, dextrous member 125 weeks

(8) one hand, nondextrous member 110 weeks

(9) one thumb and the metacarpal bone thereof 55 weeks

(10) one thumb at the proximal joint 34 weeks

(11) one thumb at the second distal joint 22 weeks

(12) one first finger and the metacarpal bone thereof 28 weeks

(13) one first finger at the proximal joint 22 weeks

(14) one first finger at the second joint 17 weeks

(15) one first finger at the distal joint 12 weeks

(16) one second finger and the metacarpal bone thereof 22 weeks

(17) one second finger at the proximal joint 17 weeks

(18) one second finger at the second joint 12 weeks

(19) one second finger at the distal joint 10 weeks

(20) one third finger and the metacarpal bone thereof 17 weeks

(21) one third finger at the proximal joint 12 weeks

(22) one third finger at the second joint 10 weeks

(23) one third finger at the distal joint 10 weeks

(24) one fourth finger and the metacarpal bone thereof 14 weeks

(25) one fourth finger at the proximal joint 14 weeks

(26) one fourth finger at the second joint 10 weeks

(27) one fourth finger at the distal joint 7 weeks

(28) loss of all fingers on one hand where thumb and

palm remain 70 weeks

(29) one leg at or near hip joint, so as to preclude

the use of an artificial limb 200 weeks

(30) one leg at or above the knee, where stump remains

sufficient to permit the use of an artificial limb 150 weeks

(31) one leg between knee and ankle 130 weeks

(32) one foot at the ankle 115 weeks

(33) one great toe with the metatarsal bone thereof 35 weeks

(34) one great toe at the proximal joint 17 weeks

(35) one great toe at the second joint 12 weeks

(36) one toe other than the great toe with the metatarsal

bone thereof 14 weeks

(37) one toe other than the great toe at the proximal

joint 10 weeks

(38) one toe other than the great toe at second or

distal joint 8 weeks

(39) loss of all toes on one foot at proximal joint 40 weeks

(40) eye by enucleation 130 weeks

(41) total blindness of one eye 120 weeks

(42) total deafness in one ear 40 weeks

(43) total deafness in both ears 150 weeks.

B. For a partial loss of use of one of the body members or physical functions listed in Subsection A of this section, the worker shall receive compensation computed on the basis of the degree of such partial loss of use, payable for the number of weeks applicable to total loss or loss of use of that body member or physical function.

C. In cases of actual amputation of the arm or leg, the workers' compensation judge in his discretion may award compensation benefits in excess [of the period hereinafter stated] of those provided in Subsection A of this section if there is substantial evidence to support a finding that, because of the worker's advanced age, lack of education or lack of training, he has in fact a partial disability which will disable him longer than the time specified in the [foregoing] schedule in Subsection A of this section. The additional compensation period may not in any event exceed twice the time specified in the [foregoing] schedule in Subsection A of this section for such injury.

D. In determining the worker's compensation benefits payable to a worker under this section for a disability resulting from a scheduled injury, the worker is entitled to be compensated as provided in Subsection A of this section up to the date the worker is released from regular treatment by his primary treating health care provider, as defined in Section 52-4-1 NMSA 1978, if he is in fact totally disabled during that time. Any compensation paid up to that date shall be in addition to the compensation allowed under Subsection A of this section, but in no event shall any worker be entitled to compensation for a period in excess of seven hundred weeks."

Section 6. Section 52-1-66 NMSA 1978 (being Laws 1988, Chapter 119, Section 1, as amended) is amended to read:

"52-1-66. NONRESIDENT EMPLOYERS EMPLOYING WORKERS IN STATE--REQUIREMENT FOR INSURANCE--ENFORCEMENT.--

A. Every employer not domiciled in the state who employs workers engaged in activities required to be licensed under the Construction Industries Licensing Act and every other employer not domiciled in the state who employs three or more workers within the state, whether that employment is permanent, temporary or transitory and whether the workers are residents or nonresidents of the state, shall comply with the provisions of Section 52-1-4 NMSA l978 and, unless self-insured, shall obtain a [worker's] workers' compensation insurance policy, or an endorsement to an existing policy, issued in accordance with the provisions of Section 59A-17-10.1 NMSA l978. An employer who does not comply with the foregoing requirement shall be enjoined from doing business in the state pursuant to Section 52-1-62 NMSA 1978 and shall be barred from recovery by legal action for labor or materials furnished during any period of time in which he was not in compliance with the requirements of this section, and, if the noncomplying employment is in an activity for which the employer is licensed under the provisions of the Construction Industries Licensing Act, the employer's license is subject to revocation or suspension for the violation.

B. The construction industries division of the regulation and licensing department shall promulgate rules and regulations to insure compliance with Subsection A of this section."

Section 7. Section 52-3-20 NMSA 1978 (being Laws 1965, Chapter 299, Section 7, as amended) is amended to read:

"52-3-20. PAYMENT OF BENEFITS IN INSTALLMENTS.--Benefits shall be paid by the employer to the worker in installments. The first installment shall be paid not later than fourteen days after [the filing of the report required in Section 52-3-51 NMSA 1978] the worker has missed seven days of lost time from work, whether or not the days are consecutive. Remaining installments shall be paid twice a month at intervals not more than sixteen days apart, in sums as nearly equal as possible, except as provided in Section 52-5-12 NMSA 1978."

Section 8. Section 52-5-1.2 NMSA 1978 (being Laws 1990 (2nd S.S.), Chapter 2, Section 62) is amended to read:

"52-5-1.2. WORKERS' COMPENSATION ADMINISTRATION CREATED.--There is created as an entity of state government the "workers' compensation administration" [which shall be administratively attached to the labor department pursuant to Section 9-1-7 NMSA l978, subject to the following:

A. the director shall prepare and submit the administration's annual budget request;

B. the director shall have hiring and firing authority over administration personnel; and

C. expenditures for the operation of the administration shall be on vouchers signed by the director]."

Section 9. Section 52-5-3 NMSA 1978 (being Laws 1986, Chapter 22, Section 29, as amended) is amended to read:

"52-5-3. REPORTS--DATA GATHERING.--

A. The intent of this section is to allow the director to gather data and conduct studies to evaluate the workers' compensation and occupational disease disablement system in New Mexico. This includes evaluating the benefits structure and the costs incurred under each version of the Workers' Compensation Act and the New Mexico Occupational Disease Disablement Law. To this end, the director shall establish baseline data against which to assess the changes in the law.

B. The director shall independently evaluate insurance industry data pertaining to workers' compensation and occupational disease disablement claims and payments, as well as other information the director believes to be necessary and relevant to a thorough evaluation of the system's effectiveness. In addition to data generated by insurance industry representatives and organizations, the director shall collect data from employers, claimants and other relevant parties.

C. Unless otherwise provided by law, the director shall have access to insurance industry information that contains workers' compensation and occupational disease disablement claim data as the director determines is necessary to carry out the provisions of this section.

D. The director shall have access to files and records of:

(1) the labor department that pertain to:

(a) the name and number of employees reported by employers;

(b) employers' mailing addresses;

(c) federal identification numbers; and

(d) general wage information;

(2) the insurance [department] division of the public regulation commission that pertain to:

(a) historical insurance classification rates and total premiums paid during given periods of time;

(b) insurers licensed to underwrite casualty insurance; and

(c) records of group self-insurers;

(3) the human services department that include names, addresses and other identifying information of recipients of benefits and services pertaining to income support; [and]

(4) the taxation and revenue department that identify employers paying workers' compensation assessments in accordance with Section 52-5-19 NMSA 1978; and

(5) the motor vehicle division of the taxation and revenue department that pertain to the identity of licensed drivers and the ownership of motor vehicles.

E. Information that is confidential under state law shall be accessible to the director and shall remain confidential.

F. The director shall prepare an annual report. He shall publish in that report and in other reports as he deems appropriate such statistical and informational reports and analyses based on reports and records available as, in his opinion, will be useful in increasing public understanding of the purposes, effectiveness, costs, coverage and administrative procedures of workers' compensation and in providing basic information regarding the occurrence and sources of work injuries or disablements to public and private agencies engaged in industrial injury prevention activities. The reports shall include information concerning the nature and frequency of injuries and occupational diseases sustained and the resulting benefits, costs and other factors that are important to furthering the intent of this section."

Section 10. Section 52-5-12 NMSA 1978 (being Laws 1986, Chapter 22, Section 38, as amended) is amended to read:

"52-5-12. PAYMENT--PERIODIC OR LUMP SUM.--

A. It is stated policy for the administration of the Workers' Compensation Act and the New Mexico Occupational Disease Disablement Law that it is in the best interest of the injured worker or disabled employee that he receive benefit payments on a periodic basis. Except as provided in Subsections B, C and D of this section, lump-sum payments in exchange for the release of the employer from liability for future payments of compensation or medical benefits shall not be allowed.

B. With the approval of the workers' compensation judge, a worker may elect to receive compensation benefits to which he is entitled in a lump sum if he has returned to work for at least six months, earning at least eighty percent of the average weekly wage he earned at the time of injury or disablement. If a worker receives his benefit income in a lump sum, he is not entitled to any additional benefit income for the compensable injury or disablement and he shall only receive that portion of the benefit income that is attributable to the impairment rating as determined in Section 52-1-24 NMSA 1978. In making lump-sum payments, the payment due the worker shall not be discounted at a rate greater than a sum equal to the present value of all future payments of compensation computed at a five-percent discount compounded annually.

C. After maximum medical improvement and with the approval of the workers' compensation judge, a worker may elect to receive a partial lump-sum payment of workers' compensation benefits for the sole purpose of paying debts that may have accumulated during the course of the injured or disabled worker's disability.

D. If an insurer pays a lump-sum payment to an injured or disabled worker without the approval of a workers' compensation judge and if at a later date benefits are due for the injured or disabled worker's claim, the insurer alone shall be liable for that claim and shall not in any manner, including rate determinations and the employer's experience modifier, pass on the cost of the benefits due to the employer.

E. If the compensation benefit to which a worker is entitled is less than [twenty-five dollars ($25.00)] fifty dollars ($50.00) per week, any party may petition the workers' compensation judge to consolidate that payment into quarterly installments.

F. Periodic compensation payments under the Workers' Compensation Act or the New Mexico Occupational Disease Disablement Law for disability arising from primary mental impairments or secondary mental impairments shall be paid as incurred and shall not be included in any lump-sum payments."

Section 11. Section 52-6-24 NMSA 1978 (being Laws 1986, Chapter 22, Section 98) is amended to read:

"52-6-24. NOTICE AND HEARING--APPEAL.--Notice and hearing required by the provisions of Sections [21 through 23 of the Group Self-Insurance Act] 52-6-21, 52-6-22 and 52-6-23 NMSA 1978 shall be given and held pursuant to the applicable provisions of Chapter 59A, Article 4 [of the Insurance Code] NMSA 1978. A party may appeal from an order of the [superintendent] director made after a hearing, pursuant to [Section 59A-4-20 NMSA 1978] Section 39-3-1.1 NMSA 1978."